Orissa High Court
Sankar Behera @ Shankar vs State Of Odisha .... Opposite Party on 8 July, 2021
Author: S.Pujahari
Bench: S.Pujahari
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.14777 of 2020
Sankar Behera @ Shankar .... Petitioner
-versus-
State of Odisha .... Opposite Party
ABLAPL No.14653 of 2020
Bansidhar Khosala @ Banshidhara .... Petitioner
-versus-
State of Odisha .... Opposite party
ABLAPL No.14672 of 2020
Alok Ranjan Jagadala .... Petitioner
-versus-
State of Odisha .... Opposite party
ABLAPL No.14685 of 2020
Tapan Kumar Pati .... Petitioner
-versus-
State of Odisha .... Opposite party
ABLAPL No.14703 of 2020
1.Budata Mohan Rao
2. K. Rabi Kumar .... Petitioners
-versus-
State of Odisha .... Opposite party
CORAM:
JUSTICE S.PUJAHARI
Order ORDER
No.09 08.07.2021
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1. Since all the five ABLAPLs having arisen out of the same incident, they are heard together and disposed of by this common order.
2. The Petitioners apprehending their arrest in Adava P.S. Case No.119 of 2020, corresponding to G.R. Case No.254 of 2020, pending in the court of J.M.F.C., Mohana registered for alleged commission of offence punishable under Sections 420/409/120-B/177/185/197/199 IPC have filed this petition for their release on pre-arrest bail.
3. Heard the learned counsel for the Petitioners and the learned counsel for the State.
4. The prosecution allegation reveals that a huge quantity of cashew nuts while being transported in a truck was seized by Adava Police as in the said truck, huge quantity of ganja was being transported and a case under Section 20 B(ii)(c)/25/29 of the N.D.P.S. Act was registered vide Adava P.S. Case No.74 of 2020 and the matter was being investigated by the petitioner-Alok Ranjan Jagadal, S.I of Adava Police Station. The value of the cashew nuts was more than Rs.67 lakhs, as per the consignment Page 2 of 12 // 3 // note. The consignment was given to the transporter at Palasa, namely, Prameswari Roadlines of which the petitioner-Budata Mohan Rao was the proprietor for consignment to different destination in the State of U.P by the consigner owner of the cashew. With the pleading that the same having no nexus with the crime, the transporter applied for release of the said cashew nuts in his favour before the Special Judge-cum-Sessions Judge, Gajapati, Paralakhemundi. The learned Special Judge-cum- Sessions Judge rejected such prayer inasmuch as according to the learned Special Judge, the transporter being not the owner of the cashew nuts, the same could not have been released in his favour and cashew being perishable commodity, directed auction of the same and deposit the sale proceeds under the close supervision and guidance of the Superintendent of Police, Gajapati vide order dated 4.9.2020 passed in M.C No.03 of 2020. Thereafter, an owner also made a prayer for release part of the same, which he had sold and booked the consignment with the transporter for delivery to the consignee, but the same was rejected as the court had already directed for auction of the cashew. Challenging the same, they filed a revisions before this Court. While the matter was pending before this Court, the order of the learned Special Page 3 of 12 // 4 // Judge was given effect to and the auction of the cashew was held at a much lesser price of Rs.14 lakhs. However, in the revision no notice of this Court was drawn to the fact that the cashew has already been disposed of on auction during pendency of the Criminal Revision No.376 of 2020 as such this Court passed an order to release the cashew in favour of the transporter on certain conditions mentioned therein. Be that as it may, since cashew was auctioned at a much lesser price than its value and the auction was not conducted in accordance with law, learned Special Judge- cum-Sessions Judge did not accept the report of the authority and directed for inquiry of the matter.
5. As it appears from the aforesaid, the petitioner-Alok Ranjan Jagadala was the Sub-Inspector of Police in the aforesaid N.D.P.S. Case. He made a request on 10.9.2020 to the B.D.O., Mohana to direct the Marketing Inspector to hold public auction of the seized cashew. Accordingly, the B.D.O. directed the Marketing Inspector to conduct the public auction. However, three persons came to the B.D.O. to take the seized cashew but B.D.O. stated them to make contact with the I.I.C., Adava P.S. The prosecution allegation also reveals that the Marketing Page 4 of 12 // 5 // Inspector in consultation with the transporter fixed 5.10.2020 for auction of the cashew at Adava Police Station and informed the I.O and the I.I.C accordingly and told the transporter to come on 5.10.2020 for auction in the Adava Police Station. In the presence of the Marketing Inspector, I.I.C, I.O. along with seven persons including the transporter, the bidding was done without intimating the S.P. Gajapati, so also no public notice to the aforesaid bidding was given and no offset price was fixed and auction was held and the cashew was disposed of at the cost of Rs.14 lakhs. Thereafter, an intimation was given to the court concerned but as the same had been auctioned at Rs.14 lakhs and the auction was not done in accordance with the law, the court held violation of the order of the court and the court did not accept the said auction and directed for an inquiry. During the inquiry conducted, the Addl. Superintendent of Police, Gajapati found an ill-intention and conspiracy for committing misappropriation by disposing of the cashew at lesser price causing wrongful gain to the transporter and the men in whose favour the auction having finalized. Hence, the FIR was lodged pursuant to such inquiry by the Addl. Superintendent of Police. The petitioners being indicted in the Page 5 of 12 // 6 // aforesaid case and apprehending their arrest have come to this Court for their release on pre-arrest bail.
6. Learned counsel appearing for the petitioners would submit that the cashew being a perishable commodity and its quality having deteriorated with the passage of time, when the same was put to auction, it fetched for Rs.14 lakhs. When it fetched a less price for that than the consignment was valued, it cannot be said that there was conspiracy and in this manner loss was caused to the State exchequer. Since there was irregularity in the auction for that no criminality can be attributed to them and as the petitioners are ready and willing to cooperate with the investigation, they be released on pre-arrest bail.
7. The petitioners in ABLAPL No.14703 of 2020 are Budata Mohan Rao, the transporter and petitioner no.2, highest bidder in whose favour the bid was finalized. Their learned counsel submits that they had entered into any conspiracy to finalize the bid in a throwaway price by managing the bid is without any substance. Furthermore, the cashew being belonging to the petitioner no.1- transporter and he being not aggrieved even though he is liable to refund to the consigners of the value of the cashew, he cannot be Page 6 of 12 // 7 // attributed mala fide or conspiracy for auction of the cashew at a lesser price than the consignment value.
8. So also learned counsel for the B.D.O in ABLAPL No.14653 of 2020 submits that the B.D.O has no role to play inasmuch as on the request of the Investigating Officer, he deputed the Marketing Officer to assist in the auction. Hence, he deserves to be released on pre-arrest bail. So far as Marketing Inspector-petitioner in ABLAPL No.14777 of 2020 is concerned, learned counsel submits that since the cashew being a perishable commodity, fetched Rs.14 lakhs only in an auction finalized in favour of the highest bidder, no mala fide can be attributed to him. The I.O. i.e. petitioner in ABLAPL No.14672 of 2020 has taken the stand that since he has carried out the order of the court to expedite the auction to protect the property from further deterioration and the cashew being a perishable commodity, its value deteriorates with a passage of time and in presence of the Marketing Inspector who has expertized to value the cashew nut and has finalized the bid, no ill intention or criminality is attributable to him in the auction. Learned counsel for the I.I.C i.e. the petitioner in ABLAPL No.14685 of 2020 submits that Page 7 of 12 // 8 // though he was present in the police station, he was not directly involved in the auction as such no prima facie material is there against him in the case. Hence, he could not have been proceeded by the investigating agency in this case.
9. So also it is submitted by all the learned counsel that since the petitioners are ready and willing to cooperate with the investigation and larger angle conspiracy is not involved, no useful purpose is going to be served by rejecting their applications for pre-arrest bail of the petitioners particularly when they have no chance of absconding and ready to cooperate with the investigation.
10. However, learned Standing Counsel for the State would submit that a conspiracy was hatched to frustrate the order of the court to fetch appropriate price. It is submitted that if the cashew is held liable for confiscation, the State would suffer loss for its disposal at a throwaway price. Conspiracy can also be visualized from the fact that the transporter was in contact with all the authorities even though he was pursuing criminal revision against the order of refusal to release the cashew to take the cashew on auction at a lesser price stage managing the bid by a syndicate in Page 8 of 12 // 9 // connivance with all the accused persons. Since in this case no procedure for auction was followed and also without the knowledge of the Superintendent of Police the auction was held, their pre-arrest bail applications are liable to be rejected as the custodial interrogation of the petitioners is required to unveil the conspiracy. Hence their prayer for pre-arrest bail is devoid of merit and is liable to be rejected, submits the learned Addl. Standing counsel for the State.
11. It is not in dispute that prima facie material is there to show that not only irregularity but illegality in the auction is there inasmuch as without compliance of the provision for the auction, the auction has been done. From the materials available on record, the transporter appears to have contacted with different authorities for a stage managed bid to take the cashew at a lesser price. Ultimately if the cashew was found to be confiscated which has been disposed of being a perishable commodity, the sale proceeds have to be forfeited to the State. Therefore, auction of cashew nut at a throwaway price as alleged can be said to be at the cost of the State exchequer. However, the petitioners are stated to be cooperating with the investigation and also they are ready and Page 9 of 12 // 10 // willing to cooperate with the investigation. Furthermore, this Court directed to release the cashew in favour of Budata Mohan Rao in Criminal Revision No.376 of 2020, when it was of the prima facie view that the same was not liable for confiscation, but on certain conditions as the same being subject to the ultimate decision of the trial Court at the conclusion of the trial. This Court to secure the consignment value had directed release of the cashew in favour of Budata Mohan Rao. Budata Mohan Rao had no grievance if he is ultimately entitled to release of the cashew for such less price fetched. However, if it is held that the cashew was liable for confiscation and as such the sale proceeds for that is liable to be forfeited, then definitely is at the cost of State exchequer. But, considering the fact that the petitioners have agreed to cooperate with the investigation, coupled with the fact that this Court has already released the same in favour of Budata Mohan Rao, no useful purpose is going to be served by taking the petitioners to custody in connection with the aforesaid case for further investigation moreso when an effective investigation is also possible even if they are on bail and if they do not cooperate the State has the option to seek cancellation of pre-arrest bail Page 10 of 12 // 11 // granted. Therefore, this Court is of the view that the petitioners deserve to be released on pre-arrest bail but on certain conditions.
12. Hence, the prayer for pre-arrest bail of the petitioners are allowed and it is disputed that on surrendering before the court, they shall be released on bail on each of the petitioners furnishing bail bond of Rs.1 lakh with two sureties each for the like amount and giving an undertaking to cooperate with the investigation. In addition to the same, Budata Mohan Rao shall pledge in favour of the court a fixed deposit of Rs.40 lakhs kept in any nationalized bank. Petitioner-K. Rabi Kumar shall also pledge a fixed deposit of Rs.10 lakhs of any Nationalized Bank in favour of the court and all other petitioners shall pledge fixed deposit of Rs.5 lakhs of any nationalized bank in favour of the court. So also they shall each of them furnish an undertaking that if in the conclusion of the case, they are held liable to pay compensation to the State, then they shall have no objection for appropriation of the amount in the fixed deposit for such compensation, in the event of their failure to pay the same.
13. With the aforesaid order, the pre-arrest bail applications stand disposed of being allowed.
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14. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.
(S.Pujahari) Judge PKS Page 12 of 12